What is Malicious Prosecution?

From time to time, the prosecution of an alleged offence will be commenced for reasons that are far from pure. The stressors confronted by people who face criminal prosecution are substantial enough. Add to that a situation where you or your criminal defence lawyers suspect foul play on the other side, and things are further complicated.

So what is malicious prosecution? What can you and your criminal lawyer do to address this problem?

What is malicious prosecution?

As the name suggests, malicious prosecution involves legal action being taken against a defendant in order to deliberately cause harm – rather than on reasonable grounds.

Interestingly, malicious prosecution has been an entrenched part of common law for many centuries. Courts take it seriously if a defendant is pursued for malicious reasons, as it is a huge waste of valuable resources within the justice system. More than one defence lawyer in Sydney – and beyond – has had deal with the injustice that comes via malicious prosecution.

Reasonable and probable cause?

To prove malicious prosecution, a number of key elements must be present. First, an action must have been brought by the prosecution. That is, there can’t just be the threat of action against a defendant. This then needs to be terminated in favour of the defendant, with ‘termination’ able to take a number of forms.

Importantly, it is necessary to show that the prosecution pursued the matter without reasonable and probable cause. This doesn’t mean that they needed a particularly strong case – just that they had something credible to go on when they started prosecuting.

Malicious intent

Unsurprisingly, malice towards the defendant needs to be present. This means that the prosecution deliberately proceeded with unfair intentions. Considering the significant power and resources available to many prosecution teams, criminal defence lawyers certainly become disappointed when malicious prosecution occurs against their defendant clients.

Harm sustained

The actual effect upon the defendant becomes an important element in these cases.

Under the tort of malicious prosecution, the defendant needs to show that they have suffered actual physical, economical, psychological or emotional loss as a result of the malicious and wrongful action carried out by the prosecution. It’s not hard to see how a wrongful prosecution of this nature could leave lasting damage.

A case study in harm

The rather infamous matter of Gordon Wood illustrates the potential damage that can arise if malicious prosecution is alleged. Mr Wood was convicted of killing his girlfriend Caroline Byrne, after her body was found at the Gap in Sydney in 1995. He was imprisoned for only three years before the conviction was overturned in the NSW Court of Appeal in 2012. Justice Peter McClelland there made some rather pointed remarks about the unreasonable original verdict, as well as the inability to rule out suicide in this case.

Mr Wood is claiming that wrongful prosecution has occurred, costing him both his reputation and a significant loss in income. He estimates this income loss to be somewhere between $8.9 million and $17.8 million.

Going for fairness

As can be seen from the example of the Wood matter, malicious prosecution is not only an inappropriate way to do justice; it can also cost the defendant and ultimately the State a significant amount in damages.

Most defendants understand that both sides in any criminal matter will be seeking the best outcome. Hard work, good evidence and strong arguments can be expected both from the prosecution and the defence. But what shouldn’t be part of any criminal matter is the damaging presence of malicious prosecution. If you or your defence lawyer in Sydney suspects that this is the case, it is better to raise this sooner rather than later. Seek expert advice on the best way to ensure a fair outcome for your particular case.

If you need advice from a criminal defence lawyer, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. We have particular experience in all types of criminal proceedings. Call 1800 NOT GUILTY or fill in our contact form and arrange a free conference with a solicitor today.